US tech industry backs Buffalo in Wi-Fi patent spat

I raise you my eBay loophole and call your injunction

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America's computing industry are lining up behind Buffalo Technology to support its appeal against a US import ban of its 802.11a and 802.11g kit.

In June, a US court stepped in to stop the sale of Wi-Fi equipment from Buffalo Technology based on technology that infringes patents held by the Australia-based Commonwealth Scientific and Industrial Research Organisation (CSIRO).

This week, the German website Heise Online reports that Japanese firm Buffalo is pointing customers to a list of products affected by the ban, which does not cover replacements for failed units under warranty.

The technology is at the heart of the much delayed but possibly-still-forthcoming 802.11n WLAN standard. The standard has been so delayed that manufacturers, including Buffalo, have begun producing kit that complies with the draft version.

Buffalo soldiers

Microsoft, 3Com, SMC Networks and Accton Technology have now come out in support of Buffalo, filing an amicus brief to back its appeal of the injunction.

In a statement , Morgan Miller, the Northern California law firm representing the Microsoft grouping, said the injunction:

Opens the door for other non-competitive research or educational patent holders, such as CSIRO to implement litigious 'hold-up strategies' for their own monetary gain, even after such patent holders have openly promised industry standard-setting organizations that they would license their patents to industry members on reasonable and non-discriminatory (RAND) terms — a move that would be disastrous not only for the wireless industry, but for other technology industries as well.

Morgan Miller wants the Court to overturn an injunction issued in the patent infringement case and interpret the US Supreme Court’s decision in last year’s eBay v. MercExchange. The Supremes ruled that Patent owners have no automatic right to an injunction that could cripple the business of an infringer. This, potentially, removes a crucial weapon from the armoury of US patent holders in extracting royalties from their targets.

Dropping standards

As we reported last month, standards body the IEEE has so far failed to secure an undertaking from CSIRO not to sue companies building equipment based on the draft, throwing the future of the standard into doubt.

Savvy Register readers noted that the CSIRO patented technology also underlies the 802.11a and g standards, and that it has been licensed as part of those standards. CSIRO says it is happy to talk to manufacturers about licences for the US patent 5487069 on a case by case basis.

Buffalo was in negotiations with CSIRO back in 2005 to work out a licensing deal, but according to reports it abandoned that path, instead launching court action against the organisation, along with other industry players. CSIRO adds that it can't say much more about sending a Letter of Assurance to the IEEE until the matter is no longer before the courts.

"In an apparent response to CSIRO's earlier offers to license, there are now pending lawsuits filed against CSIRO by six industry members," CSIRO vice president of licensing Denis Redfern wrote last month in a letter to the IEEE. "Where litigation is involved, CSIRO will continue to reserve its rights in relation to licensing."

A Texas court ruled in 2006 that the patent at the centre of the argument was valid, and that CSIRO can demand licence fees from companies wanting to exploit it. ®